Use the power

Checks and balances can't work if Congress isn't willing to wield them

Senate critics of the government's collection of telephone data, including Oregon Sen. Ron Wyden, have the legal authority to order records declassified when they believe it's warranted, but the power has never been used. It's high time it was.

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Posted Aug. 16, 2013 at 2:00 AM

Posted Aug. 16, 2013 at 2:00 AM

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Senate critics of the government's collection of telephone data, including Oregon Sen. Ron Wyden, have the legal authority to order records declassified when they believe it's warranted, but the power has never been used. It's high time it was.

Former National Security Agency contractor Edward Snowden, who now faces criminal charges, leaked an order from the Foreign Intelligence Surveillance Court authorizing the NSA to collect data on domestic telephone calls, touching off a public debate about the practice.

Some government critics see Snowden as a whistleblower. Others say he's a traitor. Either way, a public discussion about national security and personal privacy is a debate worth having — one that could have happened without Snowden if Congress had been doing its job.

Wyden and others have been critical of the NSA and its secrecy, but said they were barred from discussing surveillance policies they knew about because the information was classified.

It turns out the authors of legislation that created the Senate Intelligence Committee in 1976 specifically foresaw this kind of conflict between intelligence agencies and Congress. Section 8 of the resolution says, "The select committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure."

If a majority of committee members vote to declassify material but the administration resists doing so, the issue moves to the Senate floor, where the full Senate can approve the disclosure, disapprove the disclosure or vote to let the Intelligence Commitee make the call.

In nearly four decades, the committee has never used that power. Some critics say Congress has been too deferential to the executive branch in when it comes to classified information.

Many Americans were alarmed when they learned the NSA was collecting records of domestic telephone calls without their knowledge. The government maintains the data collection is necessary to protect national security.

Certainly some information about national security measures must be kept secret. But that secrecy is bound to create conflicts in the United States, where the people hold the ultimate authority over their government.

Balancing those conflicts is no easy task, but the tension between freedom and security is part of what makes the U.S. system unique and an example to the rest of the world. If that system is to function properly, Congress must use its powers of oversight.

Wyden has been especially critical of the NSA's tactics, but the Intelligence Committee he sits on has not wielded the power the law clearly gives it.

When a reporter asked, Wyden and fellow committee member Sen. Tom Coburn, R-Okla., both said they were not aware of the provision allowing the panel to declassify information.